With a newly established government of national unity in South Africa, the criminal justice system remains one of the most crucial areas for any society seeking peace. It would be in the best interest of the new government to direct its executive branch, especially the criminal justice system (Police and Courts), to prioritise violent crimes over other offenses.
The violent crime crisis in South Africa is well-documented. It is common to hear people from outside South Africa express astonishment at how we manage to survive in a country with violence levels comparable to active war zones. South Africans have grown accustomed to this reality, while their political leaders only pay lip service to the fight against crime.
We must first determine what type of crime we are addressing. In the simplest definition, a crime is anything deemed unlawful by a statute of a particular jurisdiction. For example, if a law prohibits smoking in a private residence used as a home office; smoking in that space would constitute a crime/offence.
A more robust definition of crime stems from natural law and justice, stating that any action that harms or infringes upon another’s rights is a crime. This definition includes offenses like murder and rape, which do not rely on statutes for recognition as crimes.
It is crucial for citizens to understand this distinction. When politicians claim to be combating crime, which crimes are they targeting? Are they allocating resources to apprehend individuals lacking proper permits or signage for their businesses, or are they focusing on murderers, rapists, and thieves?
Due to non-harmful crimes being included in the statute book, resources are spent on prosecuting individuals whose actions are not harmful but are considered criminal for various reasons. This includes arresting and prosecuting individuals for drug possession and/or drug use and even its commercial activity. No matter how reprehensible you may find it when another person consumes drugs, someone else taking them does not harm you in any way. The action of consuming drugs is not harmful to anyone but the drug user themselves.
Given South Africa’s high rates of violent crime, this focus on non-harmful crimes is troubling. It is imperative to concentrate all criminal justice resources on actions that harm others, such as violent crimes, rather than procedural offenses that do not harm anyone.
This means focusing more on the rape and violent assault epidemic, coupled with a murder rate that would make many across the world afraid to venture outside in South Africa at all, and such rampant theft through crimes like housebreakings.
The most effective approach would be for the legislature to consider repealing many of these laws that criminalize actions without causing harm to others. This would streamline the criminal justice system, allowing it to focus solely on crimes that harm individuals.
As citizens, we must consider what matters most to us. Is it more important to arrest an entrepreneur lacking proper documentation, or should our state’s primary focus be eliminating violent crime in our society? Prosecuting non-harmful actions instead of harmful ones will not create a safer or more prosperous society.
The excessive allocation of resources to non-harmful crimes amidst a severe crisis is why the Free Market Foundation’s Section 12 project suggests decriminalisation as a solution to South Africa’s crime problem. Other solutions to dealing with violent crime include a sounder definition of crimes in South Africa, decentralisation of policing powers as it has been shown to improve accountability, and the ability to respond to local context-specific offenses. Developing the capacity of the criminal justice system by increasing funding to enable it to deal with the mammoth task that is our violent crime problem is also part of the solution.
According to the South African Police Service itself at the Khayelitsha Commission, it does not have enough human resources to service the South African populace. Therefore, the most rational thing to do would be to lessen the avenues under which they will be expending their already limited resources. One can only hope that sense will prevail with the current decision-makers, and they will take seriously our violent crime crisis.
Thus, when the next politician you listen to says they promise to fight crime or they are, ask them which crime? Lest you think the state is protecting you whilst it is criminalizing those who harm no one and by virtue of that, letting those who do harm others, walk free.
The views of the writer are not necessarily the views of ProtectionWeb.
Written by Zakhele Mthembu BA Law LLB (Wits), Policy Officer at the Free Market Foundation.
